Independent Police Investigative Directorate Bill & Civilian Secretariat for Police Service Bill: Amendments proposed by Select Committee on Security and Constitutional Development

Meeting report

Independent Police Investigative Directorate Bill (B15D-2010): Amendments proposed by Select Committee on Security and Constitutional Development: Briefing by Independent Complaints Directorate (ICD)
Mr Francois Beukman, Executive Director, Independent Complaints Directorate, outlined briefly the amendments proposed by the Select Committee on Security and Constitutional Development (the Select Committee) to the Independent Policy Investigative Directorate Bill (the IPID Bill).

Firstly, the Select Committee proposed the insertion of a definition in Clause 1, page 4, for “Constitution”. It also proposed, for Clause 1, that the words “safety and security”, appearing on page 4, line 33, be replaced with “policing”.

Secondly, the Select Committee proposed that in Clause 7, on page 6 of the Bill, the reference in line 12 to “four months” should be replaced with the period “one month”. This related to the timeframe for submission of annual financial statements to the Minister of Police.

Thirdly, the Select Committee suggested a new paragraph (f) be inserted into Clause 21, after line 49, reading: “(f) to refer disciplinary matters to the Provincial Commissioner;”.

The Select Committee also suggested amendments to Clause 29. In line 26, it suggested that the word “Commissioner” be replaced with “Commander”. In line 29, the reference to “(h)” should be substituted with “(f)”.

Discussion
Mr M George (COPE) asked for clarity on the change of wording from “Commissioner” to “Commander”.  The Constitution used the term “Commissioner”.

The Chairperson said the Committee would return to this question.

Ms M Molebatsi (ANC) asked for an explanation of the amendments proposed on page 12 of the Bill.

Mr Beukman replied that Clause 28 mentioned all areas that the Independent Police Investigative Directorate (IPID or the Directorate) had to investigate, which basically were all complaints against the SAPS. All of these instances were informed by Clause 29, except that “(h)” and “(g)” were instances of investigation that were initiated by the Department of Police or the IPID, which meant there in these instances there was no need to put a reporting obligation on the SAPS.

Ms D Kohler-Barnard (DA) said that there was no reference to what the Directorate “must” do in Clause 28(2), and there was also no reference that the SAPS “must” report matters of corruption either.

Mr Beukman replied that this was correct.

Ms Kohler-Barnard asked why this was the case.

Mr Beukman replied that IPID would investigate matters related to “systemic corruption”, and it was envisaged that IPID would be taking a pro-active approach. If corruption was reported to IPID in terms of Clause 6(1), it had to investigate the allegations. “Systemic corruption” would refer to matters that arose from the Directorate’s investigative initiatives.

Ms Kohler-Barnard asked why the term “systemic corruption” was not in the definitions, as it was a specific, definitive term.

The Chairperson said that the Committee had already discussed this and had, in a previous meeting, come to the conclusion that it would leave this clause in its present form. There were other departments who also investigated corruption and referred matters to the ICD.

Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, replied that this was correct. However, there would be no problem in inserting a definition for “systemic corruption”.

The Chairperson asked for further clarity on the subparagraphs of Clause 28, seeking for confirmation that the matters outlined in (a) to (f) were matters where the SAPS had to initiate enquiries and notify ICD, whereas the matters referred to in (g) would be external from the SAPS and would be initiated after a complaint had been made, in which Case the Executive Director of the IPID would launch an investigation.

Ms Booyse replied that this was correct. Only subparagraphs (a) to (f) invoked a SAPS obligation to report.

Ms Booyse then answered Mr George’s earlier question by noting that the Constitution spoke of “provincial commissioners” in Chapter 11.

The Chairperson said that there was no mention of “station commissioners” in the Constitution, so the Committee was not obliged to use this term, but could use any other suitable term.

Rev K Meshoe (ACDP) said that Clause 29 (g) included corruption matters raised by the public. He asked how the public would be able to report corruption if this clause was to be removed.

The Chairperson replied that Clause 29 dealt with the reporting obligation of the SAPS or municipal police. It was not the obligation of the SAPS to report corruption matters. Instead, that was the responsibility of the Executive Director of the ICD (and, in future, IPID).

Mr M Swathe (DA) said that Rev Meshoe was asking how the public would be able to report matters of corruption.

The Chairperson said that the provisions of Clause 28 included everyone. Clause 29 was speaking solely about the SAPS obligations.

Ms Kohler-Barnard asked if there was any provision that a SAPS member who became aware of corruption could report it. It would be “bizarre” if SAPS members were not obliged to report corruption.

Ms A Van Wyk (ANC) said that this was re-opening a prior debate, which had resulted in the Committee taking a decision that smaller matters of corruption were to be investigated by the SAPS. The Committee should not return to these debates. These discussions referred to bigger matters of corruption.

The Chairperson said that the ICD / IPID would be overwhelmed if it was to investigate matters such as a policeman taking a bribe. Small matters like this should be handled by the SAPS, unless it became apparent that the corruption was systemic or on a large scale. Ministers and MECs could also ask for intervention by the ICD /IPID.  If it was a larger way of life in a certain station, for instance, or happening on a large scale, then the ICD should investigate. She highlighted that ministers and MECs could also demand when the ICD’s intervention was needed.

Rev Meshoe then asked for clarity on the amendment that sought to change the reporting period to the Minister of Police from four months to one month.

Ms Van Wyk did not agree with this proposed amendment. The Public Finance Management Act (PFMA) stipulated that an entity had to send its financial statements to National Treasury (NT) within two months after the end of the financial year, and to the Minister within five months. Therefore a requirement of one month was completely unreasonable.

Mr Beukman said that whilst he could not debate this on behalf of the Select Committee, the rationale behind the proposal was to allow the financial statements to go to the Minister first.

Ms Van Wyk said that the Bill could not attempt to impose new rules. The Minister could not look at the financial statements before it had been sent to National Treasury, as they were not, at that stage, the final financial statements. The PFMA clearly set out, in Section 41(d), that financial statements needed to be submitted to National Treasury, the Auditor-General and the executive in charge of the department in question. It was also quite clear that the financial statements needed to be audited before being sent to the Minister. No provisions in this Bill could contravene the PFMA.

Ms Booyse said that this was also her interpretation, and that the Office of the Chief State Law Advisor had suggested a longer period as well.

Ms Kohler-Barnard said that the Committee had debated the time, and had decided on four months. The NCOP amendment was not acceptable.

The Chairperson said that the Portfolio Committee clearly disagreed with the Select Committee, and accordingly would reject this proposed amendment.

The Chairperson said that clarity was needed on the change of the term “safety and security” to “policing”.

Mr V Ndlovu (IFP) asked whether it was necessary to change this in the Bill.

Mr Beukman said that he could not debate this on behalf of the Select Committee, but the rationale behind the proposed change to Clause 21 was to ensure that provincial offices reported to provincial commissioners.

Rev Meshoe noted that some provinces still used the term “safety and security”.

Ms Van Wyk replied that the current definition referred to the MEC in charge of policing and any provincial terminology would be covered by that description.

Mr George thought that, apart from the proposals on Clause 7, the amendments were not significant.

Mr Ndlovu proposed, and the Committee agreed to accept all the Select Committee amendments apart from those to Clause 7.

Formal adoption / rejection of Select Committee proposals
Members went through each of the proposals made by the Select Committee.

The proposed amendments to Clause 1, and the amendment on page 4, at line 35, were accepted.

The Select Committee’s proposal to change the period of reporting in Clause 7 was rejected.

Members accepted the Select Committee’s proposals to Clauses 21, and the two changes to Clause 29.

Civilian Secretariat for Police Service Bill (CSPS Bill) [B16D-2010]: Amendments proposed by Select Committee on Security and Constitutional Development: Civilian Secretariat for Police Service (Secretariat) briefing
Mr Irvin Kinnes, Chief Director: Policy and Research, Civilian Secretariat for Police Service (Secretariat), outlined the proposed amendments by the Select Committee on Security and Constitutional Development.

Firstly, the Select Committee proposed that Clause 12(2) be amended, by the addition, after line 54 of page 8, of the phrase: “The provisions of Section 7(1), (3) and (4) apply, with the necessary changes, to the designation or filling of a vacancy in terms of subsection 1”.

It was proposed that the reference to one year in the case of filling of a vacancy, under Clause 12(3), must be replaced with: “In the case of a vacancy, the Minister must fill the vacancy within a reasonable period of time, which period must not exceed six months.” These clauses were cross referenced to Clause 7 on page 7.

The Select Committee requested that in Clause 18, the reference to “in consultation” must be changed to “after consultation”.

For Clause 21, the Select Committee suggested that new wording be inserted after line 2 of page 11, to read: “(2) The provisions of section 18(1), (3), and (4) apply, with the necessary changes, to the designation or filling of a vacancy in terms of subsection (1).” In line 5, the Select Committee wished to reduce the vacancy period to three months.

The Select Committee had stated that Clause 26(1) must also be amended, on page 12, because some of the provinces had suggested that the original wording did not comply with Section 100 of the Constitution.

Finally, he noted that on page 12, lines 23 to 31, there had been a mistake and that subclause 26(2) should not have been deleted, and only subclauses (3) to (5) should be deleted.

Discussion
Rev Meshoe interjected that it would be helpful to set out, for the Committee, the subclause that was omitted.

The Chairperson said that it was important to know what the previous version of the Bill had said. She requested Mr Kinnes to return to Clause 12.

Mr Kinnes replied that the changes were made to accommodate an acting appointment to the Secretariat.

Ms Van Wyk said that she did not understand why the words “with the necessary changes” appeared at all in Clause 12(2) as they were unnecessary, and should be removed.

Ms Kohler-Barnard suggested that the sentence stop at the word “apply”.

Ms Booyse agreed that there was no objection to this.

Mr George referred to the proposals for Clause 12(3). He noted that although it was not necessarily incorrect, it may not be practical to require the filling of a vacancy in six months.

Mr George then said that he needed to know the rationale behind the Select Committee’s proposal to change Clause 18. The change from “in” to “after”, as previously discussed by this Committee, might mean that there could be a stalemate if there was no agreement.

The Chairperson asked what the rationale behind the proposal to drop the period was.

Mr Kinnes replied that that the Select Committee had been concerned about the need for continuity, saying that the vacancy should be filled as soon as possible. 

Mr G Lekgetho (ANC) agreed with the amendment, as he felt that a period of one year was too long.

Mr G Schneemann (ANC) said that, in principle, he did not have a problem with six months, as appointments sometimes took too long. However, he was worried that limiting the period may lead to rushing the appointment and appointing the wrong person. He suggested that it would be safer to retain the reference to one year, as it was not open-ended.

The Chairperson noted that the wording required that the time “should not exceed one year”.

Ms Kohler-Barnard said that discussions around this period had centred on the possibility of having to head-hunt the right person, who might be required to give two to three months notice. It might be that the ideal candidate would only be found after six and a half months. She agreed that limiting the period to six months was too little for the appointment of a high calibre person.

The Chairperson pointed out that the wording was not suggesting that it would take a year to appoint someone, but that it should not exceed one year.

Mr George agreed, saying that it would be undesirable to pressurise the Executive Authority to appoint someone hastily. Such appointments needed a lot of consideration.

Mr Lekgetho wondered if the NCOP representatives should not be present during these discussions, as the current way of dealing with it was delaying the Bill.

Ms P Mocume (ANC) pointed out that the period of six months suggested was included in “one year”.

The Committee agreed to leave Clause 21 as originally worded, and reject the proposed changes of the Select Committee.

Mr Kinnes read out the original version of Clause 26.

Ms Van Wyk proposed that the Committee should accept the Select Committee’s proposed amendment to Clause 26, as the NCOP was concerned with the provinces’ functions, and thought it would make the work of the National Department of Police easier.

The Chairperson noted Members’ acceptance of this amendment.

Ms Van Wyk wished to comment on the proposed changes to Clause 18(1). A change from “in consultation” to “after consultation” weakened the involvement of the Minister.

Mr Kinnes noted that the Select Committee had believed that MECs should have the right to determine the appointment of the provincial secretariat.

The Chairperson said that she would prefer “in consultation”. After other Members had briefly discussed this, she elaborated that “in consultation” meant that the parties needed to agree, whereas “after consultation” meant that the MEC could appoint his or her choice, even if the Minister disagreed, and only had to inform the Minister of his or her choice. Here, the use of the term “in consultation” was more appropriate.

Mr Swathe asked for the State Law Advisor’s advice.

Ms Booyse replied that the Chairperson was correct.

Ms Kohler-Barnard asked who would take the final decision if a province and the Minister disagreed on the ideal candidate.

Ms Van Wyk said that there were clear guidelines on how to deal with a disagreement between an MEC and the Minister. The term “in consultation” should be kept.

Mr Schneemann said that low level officials would be appointed by the MEC alone. However, there was a need for uniformity of approach in the strategic direction of the Secretariat. Failure to use “in consultation” could result in inconsistencies.

The Chairperson, Mr Swathe, and Mr George all believed that “in consultation” would be appropriate.

Mr George said that the chances of the Minister not agreeing with the MEC were very limited, and would not give room for whims or pettiness. Policing was a national competence, and thus “in consultation with the Minister” was appropriate.

Ms Van Wyk said that the Constitution defined the powers of MECs. She did not agree with Ms Kohler-Barnard’s comment that this was patronising to MECs. Many pieces of legislation referred to “in consultation” with the relevant Minister. She pointed out that the MEC’s views could not be overruled and any party objecting had to be able to support that objection with valid reasons. The clause said clearly that the MEC would be making the appointment.

Mr Schneemann said that Clause 17 on page 9 spoke clearly to the need for provincial secretaries to align themselves with the national CSPS. The provincial secretariat was clearly not to be stand-alone and must operate in line with the national CSPS.

The Chairperson closed the discussions on this wording, agreeing that the MEC would make the appointment, and that any disagreement by the Minister must be based on substantive issues and supported.

Mr Kinnes referred to Clause 26, relating to the omission of subsections (2) to (5). He noted that this was a mistake and that subsection (2) was to be retained.

The Committee agreed.

The Chairperson asked for comment on Clause 21, where the Select Committee proposed the substitution of a period of six months with three months.

Mr Schneemann noted that, similar to Clause 12(2), the phrase “with the necessary changes” was unnecessary and should be omitted.

Mr George again appealed to the Members to reject the Select Committee’s lowering of the time frames. This process should not be rushed, and three months was unreasonable.

Ms Van Wyk supported Mr George, in line with discussions on Clause 12.

The Chairperson summarised that the Committee therefore was only accepting the Select Committee’s proposal on Clause 26, but was rejecting the amendments proposed to Clauses 12, 18 and 21.

Formal adoption / rejection of Select Committee proposals
Members formally agreed to remove the phrase “with the necessary changes” from Clauses 12(2) and 21.

Members formally rejected the Select Committee’s proposal to change the time periods in Clauses 12(3) and in Clause 21, at line 5.

Members formally rejected the proposal by the Select Committee to amend “in consultation” to “after consultation”, in Clause 8.

Adoption of minutes and reports
The Chairperson tabled the corrected Committee Report on the State Information Technology Agency (SITA) Annual Report. She also said that the Minutes of 9, 10 and 16 November 2010 would need to be adopted.

Mr Schneemann noted that several Members had not had a chance to study the Report and minutes. He asked if adoption of these could be held over to 22 February.

Ms Van Wyk supported this request.

The Chairperson noted that the minutes of 10 and 16 November were very short, and asked Members to read through them now.

Members read through and adopted both sets of minutes.

The Chairperson said that the adoption of the Committee’s Report and the minutes of 9 November would stand over for adoption at a later meeting.

The meeting was adjourned.